[Author]by David Bacon[/Author]
Under the Fourth Amendment, the people of the United States are not supposed to be subject to random and arbitrary stops and searches. But within 100 miles of a U.S. border, these rules don’t apply.
Last July, a worker phoned Alejandro Valenzuela, a young staff member at the Southside Workers Center in Tucson, Arizona. The police were at his home, the worker said, and were detaining him for deportation. Valenzuela and a friend drove over to observe – “to make sure his rights were being respected.” Over the next half hour the police grew increasingly hostile, demanding identification from Valenzuela, despite the fact that he was not driving the car, which was parked at the curb. They then detained Valenzuela and the worker.
Police then drove the two to Border Patrol headquarters. Neither was ever arrested or accused of a crime. Valenzuela was detained and intensively questioned for five hours, and finally released only when he could show he qualified for Deferred Action, which allows undocumented young people (DREAMers) to apply for deferred deportation and work authorization. The worker was eventually deported.
“On the street we get stopped and questioned because of the way we look,” Valenzuela charges. “It’s racial profiling.” On his behalf the ACLU filed the first challenge to section 2B of Arizona’s infamous SB 1070 “Show me your papers” law, which went into effect in September 2012. It authorizes police to enforce immigration law, and the ACLU argues it “unconstitutionally authorizes and encourages illegal police practices … the South Tucson police officers’ actions amounted to false arrest, violated Alex’s right to equal protection of the law and trampled his right to be free from unreasonable seizures.”
Tucson is 60 miles from the Mexican border, within a 100-mile zone where immigration authorities say important due process rights can be suspended. “SB 1070 interacts with this 100-mile area to enable these rights violations,” explains James Lyall, ACLU staff attorney in Tucson.
“It’s easy for police to stop people on a pretext, detain them longer than permitted, and turn them over to the Border Patrol.” The Valenzuela suit was one of the first actions taken by the ACLU Border Litigation Project, launched to document and litigate civil and human rights cases on the U.S. Mexico border.
Enforcing the “Zone”
Outside of communities like Tucson, the existence of a 100-mile “Constitution-free zone” is not well known. “There, the longstanding view [established in court rulings] is that the normal rules do not apply,” according to the ACLU. “For example, the authorities do not need a warrant or probable cause to conduct a ‘routine search.’” As of 2008, the zone potentially covered a staggering 197.4 million people-two-thirds of the U.S. population, including nine of the country’s 10 largest cities.
In Arizona, the impact is magnified by Federal enforcement and state legislation. Isabel Garcia, Legal Defender for Pima County (which includes Tucson), explains, “In Arizona we’ve become a laboratory for every kind of anti-immigrant, anti-human [rights] piece of legislation.” She points to Proposition 100 that amended the state constitution in November 2006 to permit the detention without bail of any undocumented immigrant accused of a felony. Under state legislation, a felony now includes using a fictitious document or a Social Security number belonging to another person.
The Project has documented other instances of immigration-related police misconduct beyond the 100-mile zone. They include an elderly Latino citizen jailed by Mesa police after picking a bottle from a trashcan, a passenger in a car stopped for a broken taillight taken to immigration authorities by Casa Grande police, a woman interrogated about immigration status after calling Tucson police about domestic violence, and a legal resident questioned about his status by Phoenix police while picking up his impounded car.
The ACLU of Arizona made 20 recommendations for changes in Tucson’s police practices. The most basic were to prohibit police “from questioning crime victims and witnesses about their immigration status,” from “extending any stop or detention solely to await a U.S. Customs and Border Protection (CBP) or ICE response,” requiring officers to contact their supervisors before questioning people about immigration status, and to document “the reasons such questioning is believed necessary.” According to Arizona Public Media, the council unanimously approved council member Regina Romero’s motion to ask police to put public safety above checking immigration status.
Detained and Demeaned
In October, the ACLU demanded an investigation of the Border Patrol, citing five examples of unlawful stops by roving patrols within the 100-mile zone. Although U.S. Customs and Border Protection (CBP) claims broad authority to conduct searches here, the ACLU complaint responds that “the Fourth Amendment’s protection against unreasonable searches and seizures extends to protect against unlawful investigatory stops.” Some of the documented mistreatment clearly exceeds this standard.
In May, Clarisa Christiansen was stopped by the Border Patrol n the desert west of Tucson, 40 miles north of the border, while driving her five- and seven-year-old children home from school. All are citizens, yet she was threatened with a Taser and knife, forced from her vehicle, interrogated, and left beside the road with a slashed tire.
In April, a American Indian woman was tailgated by a Border Patrol vehicle, dragged from her pickup, threatened and manhandled, interrogated and ridiculed, and detained for over an hour on the Tohono O’odham reservation. Other Native Americans have told her of similar treatment.
In March, a tourist from Oregon was threatened, detained and falsely accused of drug possession after hiking at the Fort Bowie Historical Site. A drug-sniffing dog did hundreds of dollars of damage to his car, but when his insurance company sought reimbursement, the CBP claimed the Federal Tort Claims Act “bars recovery for property damaged by CBP employees while the property is under detention.”
In May, a Latino citizen farmer was followed and detained on his property by Border Patrol agents holding automatic weapons. Agents trespass frequently, the family complains.
Two years ago, Suzanne Aldridge was stopped just outside of Bisbee, Arizona, 30 miles from the border, dragged from her car, handcuffed, and groped by a Border Patrol agent. Ten vans of agents, police and sheriffs searched her car with a drug-sniffing dog without her consent. She tried to file a complaint, but was given the runaround by CBP representatives.
In September, the ACLU of Washington and the Northwest Immigrant Rights Project settled a lawsuit challenging CBP’s roving patrols on the Olympic peninsula, which lies within the 100-mile zone. As in Arizona, the Border Patrol conducted arbitrary vehicle stops, prolonged detentions and other forms of mistreatment. Fourth Amendment protections still apply, the settlement says. “Border Patrol officially agreed to follow the Constitution and not racially profile Latinos and other minorities … People should not have to fear that they could be stopped and questioned without reason any time they drive or are passengers in cars,” said Sarah Dunne, legal director of the ACLU-WA?
The ACLU testimony made seven recommendations for humane reform. They include increasing CBP oversight, preventing excessive use of force, reducing the high number of border crossing deaths, increasing detention standards and inspections, discouraging local and state authorities’ involvement in immigration enforcement, abolishing the Operation Streamline court, and reducing CBP’s “zone of authority” from 100 miles to 25 miles from the border.
Let Them Go!
In December, Tucson Congressman Raul Grijalva was one of 27 signing a letter to President Obama opposing mass deportations. “Criminalizing American families or giving local law enforcement the responsibility to choose who stays and who goes is not the right option,” they said. Whether in court, in Congress or in the streets, the denial of rights in Arizona is being challenged and that challenge is growing.
Three facts about the Constitution-Free Zone
Fact 1
In the “Constitution-free zone,” Border Patrol agents don’t need a warrant or probable cause to conduct a “routine search.” All travelers crossing a border are assigned a risk assessment score that will be retained for 40 years.
Fact 2
The Border Patrol can put a checkpoint anywhere in the Constitution-free zone (think Fifth Avenue!). “One hundred air miles is still, technically, the border,” says Leslie Lawson from the Nogales Border Patrol Station. Everyone at a checkpoint must answer questions about citizenship status.
Fact 3
The Constitution-free zone extends 100 miles from any U.S. border. Two-thirds of the U.S. population (197.4 million in 2008) lives within this zone, which includes nine of the 10 largest metropolitan areas, and the entire populations of: Connecticut, Delaware, Washington, D.C., Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey and Rhode Island; and over 90 percent of: California, Maryland, New York, Vermont and Washington.
